McKnight: Needs of public, accused must be balanced

Contrary to consensus, review boards work well at dealing with those found not criminally responsible by reason of mental disorder

Contrary to consensus, review boards work well at dealing with those found not criminally responsible by reason of mental disorder

Four years after killing Tim McLean on a Greyhound bus, Vincent Li is not a free man. But judging by commentary on the case, you’d think officials just handed him a get-out-of-custody free card, and public safety be damned.

In reality, the Manitoba Review Board last week granted Li, who is now in the custody of the Selkirk Mental Health Centre, permission to visit the town of Selkirk for 30 minutes at a time while escorted by a nurse and a peace officer. This means that while he is permitted off hospital grounds, he remains subject to a detention order.

Nevertheless, many people in Selkirk — in fact, many people across North America — have expressed outrage at the review board’s decision, charging that it jeopardizes public safety. In response, federal Justice Minister Rob Nicholson has instructed officials to review the law and ensure that public safety comes first.

Manitoba Justice Minister Andrew Swan requested such a review two years ago, and then-B.C. attorney-general Barry Penner similarly called for a review last year when faced with the spectre of Allan Schoenborn receiving escorted temporary absence passes.

So the consensus, among both politicians and the public, is that review boards are more concerned with the rights of killers than with public safety. But that consensus seems to be based more on the fear produced by high-profile cases than on the evidence.

Indeed, the evidence suggests that the review board system works quite well in protecting public safety, and it certainly works better than the rest of the justice system, at least with mentally disordered offenders.

The system for such offenders works like this: When an accused is found “not criminally responsible by reason of mental disorder (NCRMD),” as Li was, he or she is diverted from the conventional justice system and confined in a psychiatric hospital for an indeterminate period of time.

The accused’s confinement is then subject to periodic reviews, which are typically conducted by review boards — provincial administrative tribunals composed of a judge (or someone qualified to be a judge), a psychiatrist and at least three other people.

Upon reviewing a case, the board can issue one of three dispositions: It can grant an absolute discharge, in which the accused is released without condition; a conditional discharge, in which the accused is released subject to certain conditions; or a detention order, in which the person remains in the custody of the hospital.

In coming to its decision, the Criminal Code mandates that the board “take into consideration the need to protect the public from dangerous persons, the mental condition of accused, the reintegration of the accused into society and other needs of the accused.” Protection of the public is therefore first on the list.

Furthermore, in interpreting the law, the Supreme Court of Canada has stated that if the accused represents “a significant threat to the public” — that is, a threat that is more than “merely trifling or annoying” — the board must issue either a detention order or a conditional discharge to ensure the protection of the public.

Hence, despite widespread belief to the contrary, the law already requires review boards to place a premium on public safety. But since dangerousness is notoriously difficult to predict, it’s important to consider how things work in practice, how well boards fulfil their obligation to protect the public.

And according to a 2006 report from the Department of Justice, it appears boards do surprisingly well in discharging their responsibilities. The report looked at cases admitted to review boards in 1992 and 1993 and tracked them through 2004. It discovered that, again contrary to widespread belief, boards tend to keep people in custody for unusually lengthy periods of time.

For example, 126 of 360 NCRMD cases, or 35.1 per cent, remained in custody for more than 10 years. Now, since many people convicted of second-degree murder are eligible for parole after serving 10 years, this reveals that a substantial number of people found NCRMD are locked up for as long as, or longer than, convicted murders.

And while some NCRMD cases involved homicides, most did not. Indeed, only 7.2 per cent of cases between 1992 and 2004 were homicide cases, compared to assault, which accounted for 44.4 per cent of NCRMD cases, and making threats, which accounted for 10.6 per cent.

Those statistics alone ought to put to rest the erroneous belief that review boards pay little attention to public safety. But there is more: According to the report, less than 10 per cent of people found NCRMD were subjects of previous NCRMD findings. Hence, once found NCRMD, people are unlikely to be found NCRMD again.

While there are many possible reasons for this, it does suggest that the NCRMD system works reasonably well, especially given the difficulty of predicting dangerousness. And just how well it works can be seen by comparing the review board record with that of the conventional justice system.

According to the report, an astonishing 57.2 per cent of people found NCRMD had previous criminal convictions, and nearly one-quarter had previously been convicted two to five times.

This suggests that, in contrast to the review board system, mentally ill people who are processed through the conventional justice system do return — again and again. And that means that the conventional system does little to address their problems — or for that matter, to protect the public.

This in turn reveals not only that the review board system has been uncommonly successful in protecting the public, but that, contrary to political pronouncements, there need be no conflict between protecting the public and addressing the needs of the accused.

In fact, the only way to truly protect the public is to ensure the accused received proper treatment — treatment that might, incidentally, include temporary absences from the hospital.

Hence, before politicians and the public attack the system in light of one high-profile case, they had better ensure that the system really is sick, and that their cure will not be worse than the disease.

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